March 11, 2011

Self-Evident

You all know me by a different pseudonym, and I'll reintroduce myself properly later.

But in the meantime, a word from our Founders:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.

Like our Constitution, it stands on the shoulders of many other exalted works, and my opinion is not in any way intended to denigrate those works--but what makes it stand out in my mind is not just the role it had in the birth of our nation, but in the simple, unequivocal and straightforward statements of first principles it contains.

Foremost among these is the well-known passage I quoted above. Its evocative power was such that Martin Luther King, one of the most eloquent speakers and users of language our nation has known, had no need to embellish it further when quoting it, save to correctly note that it was a promise our country had yet to fully honor. "All men are created equal."

Think about that for a moment. All men. You will notice a distinct lack of footnotes, equivocation, qualifications or exceptions to the word "all".

With the benefit of women's suffrage, this should of course more properly read "all human beings" as it does in the 1948 Universal Declaration of Human Rights, and someday I hope we will be fortunate enough to need to amend that further to say "all sentient beings"--but it is appropriate in this context to accept "men" to mean "mankind" and not "male persons”.

Jefferson could have written--but did not write--a narrower statement such as "all Americans." At the time of the writing, America as such did not yet exist; “we the people” were a collection of citizens of the British Crown, many of whom were still loyal despite their disenchantment.

Our Founders at the time, if they thought of themselves as something other than Englishmen, typically thought themselves as, say, Virginians. They could not invoke nationalism or any other abstract social construct as the source of these rights--they had to appeal to an authority higher than King George III himself.

And while I do not share their belief in a Creator, I do share their belief that there are certain inherent and inalienable rights that human beings possess simply by virtue of being human.

It is and ought to be a self-evident truth. All human beings. Not all who were fortunate enough to possess American citizenship, but all of mankind. To whatever degree we forget, disregard, or encroach upon the universality of these rights, we betray the principles on which our nation was founded.

Our fealty to these principles has never been perfect--not even from the very beginning. History is rife with examples of disfavored groups regarded by law and society as less deserving of those rights than others, and I won't belabor the obvious by dipping into the well of, for example, African-American slavery or the genocide of Native Americans.

But these principles have suffered a renewed assault in the wake of 9/11, perversely and ostensibly in aid of protecting the country founded on them. The Declaration of Independence, while not commonly thought of by laymen as part of American law, has been cited many times in case law by the Supreme Court, the details of which I will leave to the lawyers among us. Our Constitution and Bill of Rights were written on the foundation it laid--a foundation undermined by attempts to draw arbitrary and convenient distinctions between human beings, saying that this group over here has inalienable rights, but this group over here does not. I, an American citizen, have these rights; you, who are not, do not.

This is a deeply offensive argument. And if the statement of principles at the beginning of the Declaration is to mean anything at all, the offensiveness of the this argument must be self-evident--it should not need the volume of text I've generated in opposition to it, and it should not be a subject for debate.

That we have to expend effort to refute it at all ought to be a source of shame for those Americans who are capable of feeling it. For if these truths are indeed self-evident, and if we are to cherish and uphold the laws enacted to protect those rights, then it follows that there are some things which we should all be able to agree are unequivocally, indefensibly wrong--period--even if we disagree passionately about the issues in the surrounding context, differ on how we define some of the terms, or can imagine contrived and desperate scenarios where one might make an exception.

Rape is wrong.

Torture is wrong.

Terrorism is wrong.

And as well, among many other further examples, indefinite detention without due process is wrong. These things are wrong not just because they are harmful to both the victim and the perpetrator, or because they are prohibited by law, they are wrong because on a very fundamental level they are anathema to the humanity, dignity and inalienable rights supposedly possessed by all persons everywhere. They are anathema in a way that more ambiguous and abstract topics such as tax policy, mileage standards or commercial zoning laws are not. If the equality of all mankind is an axiomatic truth, and not merely a privilege enjoyed by American citizens, then Guantánamomust be closed and we must permanently end all programs of torture and indefinite detention, regardless of their location, who we imprison there, or whether or not they are “official”.

The right of due process--inspired in part by the Magna Carta--rests upon the universal right to liberty, and it is pure sophistry to argue that this right is contingent upon the citizenship of the individual, the location of their prison, or the circumstances of the moment. If the right is self-evident and inalienable, it exists independent of the Constitution, the Bill of Rights, or any other law or context. It exists independent even of the Declaration that evoked it--a document that did not establish these rights, but rather recognized their inherent existence and our obligation to protect and preserve them.

Please don’t misunderstand: I'm cognizant of both the scope of the mess left by the Bush Administration's war crimes and the limits of President Obama's powers to close Guantanamo in the face of the shameful opposition from Congress, and even accounting for this failure I still think his election has done more good than harm, especially given the alternatives with which we were presented. I don’t for a moment regret my vote. But while the President’s hands may be tied when it comes to closing Gitmo and bringing existing prisoners stateside to face trial in a civilian court, it is entirely within his power to say: no more--we are where we are, but we go no further.

Guantánamo must close, but even that will amount to a symbolic gesture if we continue the program of indefinite detention, granting undeserved legitimacy to the Bush Administration's crimes by continuing its dark legacy.

We have always been an imperfect union seeking perfection, but indefinite detention without due process in the name of national security--or for any other reason--makes a mockery of even aspiring to that end. All men and women are created equal.

Comments

For some reason I neglected to call this out explicitly in the post, but this bears directly on President Obama's recent, incomprehensible executive order to institutionalize indefinite detention. It is not clear to me, at this time, whether this means newly-captured prisoners will be brought to Guantánamo, thus continuing the program in perpetuity--or whether this is simply an attempt to cope with the reality that has been dictated by the cowards in Congress.

Neither fills me with hope that we will properly repudiate the Bush Administration's legacy anytime soon.

I agree in principle with every thing you say here. But there are a few things we can't do. We can't get a search warrant to search a suspects home in Yemen. We can't legally wiretap a suspects phone in Somalia. We can't carefully gather incriminating physical evidence in the mountains of Afghanistan. Then we ask prosecutors to build a case ina court holding to the due process requirements built around the assumption of those capabilities.

Even our military tribunals are limited in their capability to address these issues.

I am inclined to strongly agree that we are trying to solve the wrong problem. We should be trying to solve the problem of who should be and could appropriately investigate and prosecute this type of crime, rather than throwing up our hands and saying that in some cases it just can't be done.

We can't get a search warrant to search a suspects home in Yemen. We can't legally wiretap a suspects phone in Somalia. We can't carefully gather incriminating physical evidence in the mountains of Afghanistan. Then we ask prosecutors to build a case ina court holding to the due process requirements built around the assumption of those capabilities.

None of which has stopped us from successfully prosecuting hundreds of terrorism cases in civilian courts--"hundreds" regardless of what metric you use to define what is and isn't a terrorism case. Our track record in doing so is easily an order of magnitude more successful than it has been in prosecuting cases at Guantánamo via military commissions. That's produced what, three convictions? By any performance-based evaluation, doing it that way has been a complete failure.

I realize you're not a fan of them either, but I just don't buy defenses of indefinite detention and military commissions based on the expediency or difficulty of convicting terrorists. We've been doing it successfully for years; the only thing that changed about that after 9/11 was how badly we crapped our collective pants over it and forgot what we were supposed to stand for. The stakes for being wrong are too high--and we have been very, very wrong about a nontrivial number of people who ended up in Gitmo.

Frankly: the use of torture and indefinite detention, in and of themselves, do far more to make it difficult to successfully prosecute a case in a civilian court than the difficulty of getting a search warrant in Bumfrakistan.

I'm not saying that difficulty isn't there, or that it isn't more complicated than making a case against Timothy McVeigh--just that it didn't used to stop us until the Bush Administration decided that law enforcementating-type work-related activities were just too hard.

Baskaborr:

Bravo! Don't forget Bradley Manning. His detention may not be indefinate, but his treatment makes a mockery of those noble words.

You will get no argument from me whatsoever on that count. Even if he is 100% guilty as charged, what we are doing to him is so beyond the pale that I wouldn't be surprised if it makes it impossible to convict him, just as our mistreatment of so many accused terrorists has undermined the legitimacy of any case we might against them.

This is more then obvious, but where the trouble is is in what is torture, definition of it and practical application of it. Is waterboarding torture? Many know so, but not all.
The fact that US persecuted citizens of other nations for it was deciding factor for many to know that waterboarding is torture. What if there was no such persecutions before? How many people will know that waterboarding is torture if there was no previous legal cases of judgments against waterboarding?
The same problem goes for practical understanding and implementation of Declaration of Independence values for all. The understanding on how to transfer those words into real life is not available to everyone. Those central words

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.

The Declaration of Independence stands, in my mind, as one of the greatest political documents in history.

the words "created equal" is basis for every other amendment, article of the law... which try to explain what makes people equal, even the same sentence explains in more detail what being equal means:"...unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness." Every new law should be checked on how it applies to being equal.

There is another writing, much much older, that is much more practicable in being equal. The writing that many of you will scoff at because of what the followers of that writing did throughout history. "Do unto others as you would want done onto you" practice makes everyone equal.

So, would you like to be waterboarded? Or more to the topic: Would you like to be kept naked in cold cell or during morning inspection, woken up many times during the night, be in solitary confinement while not provoking anything to be subjected for it. Like braking the law or being suicidal. If someone is suicidal then his place is not in jail.

I agree that the items in your list are things that are somewhere between impractically hard to straight up impossible.

I'm not clear on how they make regimes like Guantanamo necessary.

We won't be closing Guantanamo anytime soon, because the ways in which the folks there were captured, held, and treated makes it difficult to impossible to handle them through any legitimate channel without making it highly likely we'll have to let them go.

And the Powers That Be have decided that that ain't gonna happen.

Guantanamo will be there until the last guy there dies, or until some future President decides it's worth the candle to make a clear statement that the circumstances that brought it into existence were crap, and let the chips fall where they may.

My money is on the first of those two outcomes.

The pragmatic issue in front us is making sure the practices that brought it into existence in the first place don't continue. I'm not seeing a lot of progress there, either.

But Guantanamo and places like Guantanamo are not a necessary part of dealing with terrorism.

We can't legally wiretap a suspects phone in Somalia. We can't carefully gather incriminating physical evidence in the mountains of Afghanistan.

If we can't and still base the judgment on unverifiable evidence (verbal evidence from someone who very likely might have other reasons(money, hate and so on) for getting the accused away to prison) makes it very, very likely to imprison innocent people and then torture them into false admission. False admissions will send much of the resources to waste on false targets, will create false pictures of the situation and imprison other innocent which will be tortured into more false information.
Torture and indefinite confinement of innocent will create outrage within their family, friends and create more enemies. That vicious cycle of false intelligence wastes resources, lives and keep continuous creation of the new terrorists. Very marginal benefit of real intelligence trough torture is diminished into wast waste and a need to fight new terrorists it creates.
This also destroys the trust of holders of potential info that would be available if people would trust the occupiers to do the right thing, if occupiers would not conflate suspects with terrorists.

That myth about "price of freedom" so prevailing with right leaning, is completely fake. Terrorists attacking us and various limits on freedom because of it, is price paid for controlling world resources by any means necessary.
World resources could be controlled trough doing the right thing, just like it was done after the WWII trough Marshall plan, not by assassinating communist leaning elected presidents in S. America or forcing in dictators like Shah of Iran.

This is more then obvious, but where the trouble is is in what is torture, definition of it and practical application of it. Is waterboarding torture? Many know so, but not all.

I wish it were obvious. But not a week goes by that someone, somewhere in the world, does not try to redefine these things not because there is a good argument for doing so, but in order to justify the indefensible toward their own ends.

The fact that US persecuted citizens of other nations for it was deciding factor for many to know that waterboarding is torture.

I'm not sure that "persecuted" is the word you're looking for here. Perhaps you meant "prosecuted"? Because we've certainly done that.

How many people will know that waterboarding is torture if there was no previous legal cases of judgments against waterboarding?

It isn't only the prosecution of Japanese soldiers after WWII for waterboarding that makes it torture. Nor is it even that we prosecuted our own for it during Vietnam.

It isn't even the fact that it has been near-universally considered a form of torture for hundreds of years, in practically every context in which it has appeared.

In the context of what our obligations are under the law, it is also the fact that we are signatory to at least one international treaty which has a definition of torture which waterboarding absolutely meets: the United Nations Convention Against Torture. It defines torture as follows:

Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

On the one hand, you have six hundred years of history, our prosecutions of soldiers both foreign and our own, and an international convention ratified by Congress which carries the full weight of law.

On the other hand, you have the self-serving sophistry of torturers declaring that what they're doing isn't really torture.

The existence of two sides to an argument doesn't mean both sides have value. There is no good faith argument that can be made that waterboarding isn't torture. None at all.

Please understand that I'm not saying that you're trying to make such an argument. I get the impression that you're trying to illustrate that conflict can come not from disagreement over whether or not these things are wrong, but from disagreement on how we define what those things are. I agree.

But I also think that there are areas where that ambiguity only exists when people with a vested interest in defending the indefensible try to rewrite history, language and law to suit their own selfish ends. Whether that arises from tribalism, political gamemanship, or a desire to avoid prosecution by redefining the crime.

Indefinite detention without due process is another such wrong. There is no ambiguity in the term "indefinite detention". There can be disagreement about what constitutes "due process", but that is why we have a system of justice that defines what that is. Apologists for the indefinite detention of accused terrorists try to argue that the accused, as non-citizens who are not on American soil, are not entitled to the due process enjoyed by American citizens. They cannot make this argument and still claim to believe that "all men are created equal".

There is another writing, much much older, that is much more practicable in being equal. The writing that many of you will scoff at because of what the followers of that writing did throughout history. "Do unto others as you would want done onto you" practice makes everyone equal.

I would agree that the "Golden Rule" is a valuable guideline for treating others decently on a person-to-person level. But it really has little to do with equality, and it isn't useful as a benchmark for good criminal law. A good king may go out of his way to treat his subjects as he would want to be treated were he in their shoes, but in the end he is still King, and they are not his equal. A judge or a police officer would almost certainly not want to serve time in jail, but that doesn't mean incarcerating criminals is unjust.

Amezuki
Thank you for correcting "persecution" mistake. My English is second (fifth) language, i hope that is visible (but not easily)..
I use it in more harsh and unsophisticated way so there is a bit of misunderstanding. I apologize for it. For example:But it(golden rule) really has little to do with equality, and it isn't useful as a benchmark for good criminal law. A good king may go out of his way to treat his subjects as he would want to be treated were he in their shoes, but in the end he is still King, and they are not his equal.
I was not advocating Golden Rule as a benchmark for creating criminal law, but for guards for treating the prisoners (Manning) and for purposes of explaining to confused supporters of indefinite detention and torture that find "end justify the means" practical.
About your "king" point, as far as i understand that also translates into a judge, having the power over suspects,police, congressman.... being more equal then others. That is completely true but also utopian and impractical to erase. All which i wasn't implying.
"All created equal" is benchmark for the best laws in the world. How much it is used as a benchmark is debatable.

"None of which has stopped us from successfully prosecuting hundreds of terrorism cases in civilian courts--"hundreds" regardless of what metric you use to define what is and isn't a terrorism case"

Both in the Bush administration and since these numbers reflect the cases where the challenges in prosecution have clearly been overcome, although I am uncomfortable that we can't get a count that would be reflective of cases similar to those in Guantanamo.

They always seem to count different subsets and throw in varying caveats. It leads me to believe the real number of cases that would be similar except being called terrorism cases is quite small. The downside of trying to look good by saying you have caught a bunch of terrorists.

(As a side note, the part that is most despicable to me was the refusal to recognize and act when it became obvious one of the detainees was NOT a terrorist. That should require at least some formulaic automatic compensation even if there remains a refusal to formally accept any wrongdoing)

I am uncomfortable that we can't get a count that would be reflective of cases similar to those in Guantanamo.

I'm not sure we should consider cases that are similar to Guantanamo. What makes the Guantanamo cases -- in particular the *remaining* Guantanamo cases -- uniquely problematic is that the prisoners' rights were violated to the point where they can no longer be handled via normal due process. At least without risking their release due to the inadmissability of evidence.

The nature of the Guantanamo cases -- the very thing that makes them problematic -- is what argues against the Guantanamo regime.

Thank you for correcting "persecution" mistake. My English is second (fifth) language, i hope that is visible (but not easily).

I wouldn't worry about it--you communicate just fine, and while their meanings are very different persecute and prosecute are visually easy to confuse.

To your clarification, I think the Golden Rule is an interesting thought exercise for how to treat prisoners, but we do already have laws and standards for this sort of thing.

In Manning's case, we don't seem to be following them. It's pretty shameful, and I'm disappointed in Obama's most recent public statement about it. I don't know if he says we're treating him acceptably because he's out of the loop or because he doesn't see anything wrong with what's happening, but neither speaks well of him.

These things are wrong not just because they are harmful to both the victim and the perpetrator, or because they are prohibited by law, they are wrong because on a very fundamental level they are anathema to the humanity, dignity and inalienable rights supposedly possessed by all persons everywhere.

I appreciate your emphasis on universalism, but can't fail to notice the absence of "killing people" from your list. Without wanting to be presumptuous, I have to ask: is this due to the fact that you don't want to be considered a pacifist? Please correct me if I'm wrong, but I've seen this so many times in arguments from liberals who go on at length about the despicable nature of torture etc., but at the same time cannot bring themselves to denounce war just in case they might happen to agree with reasons for fighting it.

russell: "We won't be closing Guantanamo anytime soon, because the ways in which the folks there were captured, held, and treated makes it difficult to impossible to handle them through any legitimate channel without making it highly likely we'll have to let them go.

And the Powers That Be have decided that that ain't gonna happen."

Actually, that's not at all accurate. We won't be closing Guantanamo anytime soon because Congress (not the Powers That Be) passed a law. And Congressional Republicans are trying to pass an even more horrible law. Why can't the disappointed people, who are capable of being so clear and articulate, actually state the facts? What, exactly, is the point of obscuring blame in this instance?

So Congress is "The Powers That Be" and Obama is "the Most Powerful Person In the World". And now we'll add
'People Who Are Picking On Obama" to the Initial Caps Language Of How To Obscure Truth Glossary. Excellent.

I'm not looking to make this into some kind of weird personal p*ssing match, but as a point of fact I did not specifically blame Obama for the fact that Guantanamo is still open. That's something you read into my comment.

Obama did seek to close it down, and Congress prevented that. At that point it was to some degree out of his hands, because Congress owns the purse strings. They're also trying to move jurisdiction of the folks at Guantanamo from the DOJ to the DOD. I'm not sure if it's their prerogative to do that, so it should be interesting.

I personally would have liked to see Obama press the issue further, and harder, but that's not his way. He is, above all, a pragmatic executive. And that's appropriate, and IMO is the greatest strength he brings to the job, and it's a huge strength. He has other things on his plate other than making my preferences happen.

A lot of people in this country would prefer to see the folks at Guantanamo lined up and shot, so we should probably all be somewhat grateful that we don't all get our preferences.

Hope you find this expanded version of my comment helpful, and more to your liking.

If you think I might be intending something that isn't explicit in what I actually write, maybe you can ask, rather than make assumptions.

In particular, if you think I'm factually wrong or misinformed about something I say, you can simply provide a correction. Corrections are appreciated. Accusations of "obscuring the truth" assume bad faith, and are kind of obnoxious.

For the record, IMO Obama's an excellent executive, and is likely the best possible President among the folks who were actually available. I'm delighted he won, and I hope he runs and wins again in 2012.

I also disagree with some of his positions, and some of his priorities. Lots of people do. Even progressive-minded people who have supported, and continue to support, Obama with money, time, and their votes.

I've said all of these things multiple times here on ObWi, but I'm happy to state them again if it saves you the trouble of having to counter what you take to be my defeatist, disappointed attitude every time I am critical of anything Obama says or does.

When some poor widow in the wilds of Afghanistan can obtain a warrant to eavesdrop on White House communications after her house and family were needlessly destroyed by a drone attack, then, and perhaps only then, will we be anywhere near to the universality of these high ideals that we all so dearly profess to hold dear.

I just want to know when the guys housed at Guantanamo obtained their super-human terroristic abilities. I mean, if we let them all go tomorrow, what would they do? What would happen? Are they so special that they could significantly affect the risk of terrorism already represented by the billions of people not in Guantanamo, simply by virtue of their having been brought there for, in many cases, questionable reasons? At this point, I'd guess most of them are basket-cases who would have a hard time getting out of bed or leaving their rooms of their own volition, let alone setting off a terror spree.

russell, thank you. I agree that he's not Jesus. I just think that focussed rage is more productive than unfocussed rage, and understanding the obstacles that we (including Obama) face is the first step to overcoming them. Congress's actions represent the people's fear. I agree with everyone here that, even if their fear is warranted, we're better than that. We have to figure out how to make our values, the ones that Amezuki writes about, seem once again to be greater than the fear.

FDR was a great leader, and he made a good speech. But leaders get nowhere without followers. Not that being a "follower" is a flattering term, but I'm not sure how wars (and this is a war) are won without soldiers. All I'm saying is that we need to come together and focus. What is our strategy? And I ask this sincerely. Writing letters; participating in electoral work - that's all I know how to do. And it's not enough. Demanding from Obama what he can't do alone is not effective, as much as we may wish it were so.

You know, sapient, I've said I'm sympathetic to your arguments, but trying to dissuade people from getting angry at Obama is a real waste of effort. Trying to give them all the information in order to focus their complaints is fine, but you are really pounding on this disappointed in Obama thing. That works when you are talking about bringing a budget bill or working with healthcare, but you are talking about an individual here and a person who seems at risk (as a sidenote, this also illustrates the value of keeping one's outrage dry. This isn't directed at anyone specific here, but when someone says that they won't support Obama any more because he didn't push the healthcare they wanted, you really don't have anywhere to go.

But returning to the question of what to do about Obama, I think the most effective way to make a difference would be to support Kucinich's efforts. But beyond that, what Russell said.

"On the other hand, you have the self-serving sophistry of torturers declaring that what they're doing isn't really torture."

Our political system is BASED ON self-serving sophistry, and liberals are glad of it. Without it, the federal government would have a tiny fraction it currently exercises. For instance, without self-serving sophistry, the interstate commerce clause can't extend to things which aren't commerce, or don't in a given instance cross state boundaries.

But sophistry is never limited to just where you find it convenient...

You know, a lot of every day human life is based on self-serving sophistry. It's not that hard to drum up a long laundry list of hypocritical actions and attitudes, for pretty much any demographic you care to name.

We all do our best, in general we fail a lot.

Speaking just for myself, I'm generally a lot more interested in results than in maintaining any kind of philosophical purity.

And yeah, I know all about the Constitution, but the Constitution is words, written by people, and the document itself is full of all kinds of weird compromises and twisted bizarre language intended to split the difference between contending groups of people ca. 1790, and *their* particular hypocritical, self-serving interests.

Seriously, 3/5 of a person?

And WTF are those commas about in the text of the 2nd Amendment, anyway? Just as an example.

I appreciate the point you're making but it really isn't news to anyone that folks see what they want to see in the document. The argument is about the things that different groups of folks want to see.

"No kings please" is pretty clear. The boundaries of what is and is not interstate commerce, less so. Just as an example.

sapient, Obama just signed an executive order cementing indefinite detention without charge into law:

Continued law of war detention is warranted for a detainee subject to the periodic review in section 3 of this order if it is necessary to protect against a significant threat to the security of the United States.

I'm not interested in Greenwald's take on the executive order which, of course, everyone was already aware of, novakant. I can read and interpret it myself. By its own terms:

"It does not create any additional or separate source of detention authority, and it does not affect the scope of detention authority under existing law. Detainees at Guantánamo have the constitutional privilege of the writ of habeas corpus, and nothing in this order is intended to affect the jurisdiction of Federal courts to determine the legality of their detention."

'I do share their belief that there are certain inherent and inalienable rights that human beings possess simply by virtue of being human.'

I share this belief as well. Almost all of the Founders were believers in a Creator which, at least to me, helps getting to self-evident. A strictly secular ethical belief can also get one there. But the world is also filled with those who have not yet gotten to life, liberty, and the pursuit of happiness being self-evident. Many of these people operate on a premise that might is the key determinate of right, for individuals or groups. I'm not giving a list since all here can make such a list easily.

The Founders, having stated their premises or beliefs in the Declaration of Independence, then, over a period of time, created the Constitution to establish 'how' the people would exercise their right to come together and govern themselves, and they included provisions for changing the 'how'. This was the great American experiment and the source of the idea that produced the term 'American exceptionalism' which many still believe.

I construe the Declaration to be addressing universals (all mankind) and the Constitution to be addressing Americans, explicitly acknowledging and securing their rights and providing steps and procedures for governing at the highest level going forward.

So, I view the main subjects of this posts as having human rights as described in the Declaration but not necessarily entitled to any Constitutional rights, unless they are Americans. They may have other rights if the United States is party to international agreements including such provisions.

I am not a lawyer, but it seems between all the provisions that may apply, we should be able to figure out what is the right thing to do.

I keep getting a physical image of a seesaw (the an Overton Variant Seesaw, actually). There's a loud crowd near the right end -- Palin, Hannity, Limbaugh, Scott Walker, the Tea Party, Fox News, and on and on. A very heavy statue of St. Ronnie sits somewhere between the right end of the board and the center.

There near the center, allegedly trying to be everybody's president, is Obama, and there's undisappointed (well, undisappointed in Obama; quite thoroughly disappointed with some of us; disappointment is such a contagiousmeme) sapient right there with him.

Over here on the left arm, there are a few obscure voices on blogs in the middle of nowhere, trying to keep alive the notion that there’s some unoccupied policy real estate to the left of center. But there’s not much weight over here right now, we don’t have our own noise machine, so the seesaw is tilting ever lower over there on the other end.

But hey, Obama's doing the best he can, so sapient wants us all to come on down to sit in the center with per and Obama, and stop these disappointing attempts to remind Obama and everyone else about the existence of the left arm.

In sapient’s world, the refusal of those of us sitting out the left arm of the seesaw to move toward the center is helping the people on the right arm.

I’ve forgotten a lot of the physics I ever knew, but not enough to buy that one.

If only there were evil people somewhere insidiously committing evil deeds and it were necessary only to separate them from the rest of us and destroy them. But the line dividing good and evil cuts through the heart of every human being. And who is willing to destroy a piece of his own heart?

As much as I love them, analogies (the seesaw) only go so far.

Torture in particular isn’t a left/right issue, or shouldn’t be.

Obama may not be the most powerful person in the world (which isn’t a concept I find useful anyhow). But he’s got a hell of a bully pulpit. There are myriad loud voices appealing to the dark angels floating around in all of us. He could have done a lot (his campaigning implied that he would, both in substance and in style; yes, I should have known better) to give voice to our better angels.

I don’t think it’s outside his job description. Reagan did it magnificently for his side of the seesaw. When is the last time anyone did it for my side?

I appreciate your emphasis on universalism, but can't fail to notice the absence of "killing people" from your list.

Well noticed. You're right: I would not place killing in the same category as the wrongs I listed. I don't think it's good--but I think it is sometimes an unavoidable by-product of actions that are necessary.

About 20 years ago, I had the opportunity to correspond with one of my favorite authors, Daniel Keys Moran. In his Continuing Time books there is a character named Trent Castanaveras, who had a deep and total aversion to killing, and who went to great lengths even while fleeing the grasp of a powerful world government across the solar system to avoid doing so. I learned in that correspondence that this aspect of the character was drawn from the author's own beliefs and experiences, and the way he expressed it to me was this:

Killing is wrong. Even when it's necessary, it's wrong. When you kill, you subtract a possibility from the world.

I agree with this. There is no "undo" for the act of killing. If you kill in error, it is an error you can never, ever repair. When you kill, you remove from the world everything that that person is or ever will be. Forever. Without recourse.

In some cases, perhaps that's not a bad thing. Someone who is devoutly committed to killing innocent people, for example: what are they adding to the world without which the world would not in fact be a better place? This is a good question. But it is a question that we lack the omnipotence to answer with authority. What if we're wrong? It is for this reason that I am absolutely opposed to the death penalty: it is the premeditated killing of a person, and the cost of being wrong is simply too high to bear.

With all this said, I believe that it sometimes is necessary. We need people to enforce the law and stop criminals, and sometimes that requires lethal force. It would be nice if we could give them phasers set to stun which could provide the required stopping force without forcing them to kill, but we don't have those or anything else that can completely replace a firearm. So we accept, as the price of keeping the peace, that sometimes suspects will be shot and killed by police--not because we want them to kill, but because when gunfire is being exchanged someone is likely to get killed even if one of them is not shooting to kill. This is why it is called "lethal force".

Similar principles applied to soldiers. I do not like war. I think it should be a last resort, never undertaken lightly or without the gravest reasons. But I think sometimes it is necessary to use military action to prevent a greater wrong. If you have the ability to stop a great wrong, and you do not act, your inaction is as much a moral choice as your action. I do not think, to use a well-worn but apt example, that it would have been moral to refuse to go to war against Nazi Germany because of a pacifistic refusal to kill. And when you send soldiers into battle, they are going to kill--it is what they are trained to do.

In a perfect world, with the perfect technology, we could accomplish the goals of law enforcement and soldiering without lethal force. Perhaps someday we will. But until that day, killing is an unavoidable side effect of actions that must be taken to maintain the peace.

There is no such necessity for rape, torture, terrorism, or indefinite detention. These are all actions that must be taken deliberately, with forethought. You can't "unavoidably" rape or torture someone in the heat of combat. While innocent people may unintentionally die during war, or in the crossfire exchanged between a police officer and a criminal, that killing of innocents is not the intent of these things--it is a tragic possibility that is yet another argument for why lethal force should never be used lightly. It is not the same as deliberately targeting innocents in order to create fear or collective punishment--something we have done in past wars, to our great and lasting shame. And you cannot incidentally detain someone indefinitely--at some point you have to decide not to honor their right to due process.

sapient:

Actually, that's not at all accurate. We won't be closing Guantanamo anytime soon because Congress (not the Powers That Be) passed a law. And Congressional Republicans are trying to pass an even more horrible law. Why can't the disappointed people, who are capable of being so clear and articulate, actually state the facts? What, exactly, is the point of obscuring blame in this instance?

Who is obscuring blame? I said this:

I'm cognizant of both the scope of the mess left by the Bush Administration's war crimes and the limits of President Obama's powers to close Guantanamo in the face of the shameful opposition from Congress [...] But while the President’s hands may be tied when it comes to closing Gitmo and bringing existing prisoners stateside to face trial in a civilian court, it is entirely within his power to say: no more--we are where we are, but we go no further.

And then, in my first comment:

It is not clear to me [...] whether this is simply an attempt to cope with the reality that has been dictated by the cowards in Congress.

In what way was I unclear or ambiguous?

Brett:

Our political system is BASED ON self-serving sophistry, and liberals are glad of it. Without it, the federal government would have a tiny fraction it currently exercises. For instance, without self-serving sophistry, the interstate commerce clause can't extend to things which aren't commerce, or don't in a given instance cross state boundaries.

You keep using that word. I do not think it means what you think it means.

Setting aside your misuse of the word "sophistry", your argument is also a tu quoque fallacy with no merit. Let me grant, arguendo, that I agree with your absurd assertions about our political system and interstate commerce. Done. Now in what way does that refute the substance of my argument?

After posting that it occurs to me to also ask, Brett, what the purpose of that comment actually was. The sentence of mine that you quoted was a statement of contempt for the credibility of torturers employing sophistic arguments to redefine "torture" so that what they are doing would no longer qualify as torture. You replied by saying that our political system is based on self-serving sophistry that liberals use to their benefit all the time. Since this doesn't actually in any way refute my assertion about torturers and their employment of sophistic arguments, I have to ask if you intended this as:

1. A defense of torture apologia by way of arguing that sophistry is an accepted part of our system;
2. A condemnation of both torture apologia and our system by signaling your contempt for both, or;
3. A convenient springboard from which to launch an irrelevant attack on liberals.

Based on what I've observed from you over the years I'm inclined to go with (3). But I'm giving you the opportunity to clarify exactly what you're getting at. Please feel free as well to dismiss all of the above by providing an option (4) that makes some kind of sense.

The last folks I can think of were probably MLK and RFK. Hell of a lot of good it did them, at least on a personal level.

And that's 40, almost 45 years ago. Been a long time.

Jimmy Carter was good at "decent" but that's not quite the same as speaking for people who are at a structural disadvantage in society.

Since then, I can't really think of anyone. Bernie Sanders? Russ Feingold on a really good day? Dennis Kucinich when he isn't talking about flying saucers?

There are folks who articulate a vision of life that isn't all about money and power. Bill McKibben. Wendell Berry. Miriam Simos. There are lots of others, not many are well known. But they all pretty much operate at the margins.

The pickings are slim these days. The closest approach we make to any kind of common public idealism is a misty-eyed sentimental cult of "heroes" (unless they're cops or firemen and they want to bargain collectively). That, and a weird sense of liberty that always seems to boil down to a bizarre entitled version of "leave me alone".

Seriously, where *have* all the flowers gone? What a funny question! Stupid hippie.

I construe the Declaration to be addressing universals (all mankind) and the Constitution to be addressing Americans, explicitly acknowledging and securing their rights and providing steps and procedures for governing at the highest level going forward.

So, I view the main subjects of this posts as having human rights as described in the Declaration but not necessarily entitled to any Constitutional rights, unless they are Americans. They may have other rights if the United States is party to international agreements including such provisions.

While this is not entirely correct, you raise an important angle to this argument, one I think I was getting at somewhere in my post but perhaps did not make explicit. Let me see if I can express this properly.

What you describe is the way the law, as applied to accused terrorists outside of the United States, worked in practice during the Bush Administration. IANAL either, so I invite those in the house with law degrees to add some clarification to this, but I think that this is essentially accurate at any level of detail that is important to this discussion.

That is different than saying that this is what is right. I am making a prescriptive argument, not a descriptive one.

You may find this essay by Glenn Greenwald instructive--feel free to disregard Greenwald's editorial comments if you're not a fan of his, but do dig into the case law and facts he cites; they are sound to the best of my understanding. In essence, the Constitution does in fact apply to both US citizens and non-citizens alike. This should be an obvious conclusion if we accept the principles in the Declaration as self-evidently true: it is impossible to accept, for example, that all men are created equal, that these rights are inherent and universal, and then say that we should only recognize those rights as applying to American citizens.

The problem created by Guantanamo--a problem that was deliberate and by design on the part of the Bush Administration--is that while the Constitution has always applied to citizens and non-citizens alike, there was disagreement about whether or not our courts had the jurisdiction to apply the Constitution to aliens held outside of our territorial borders. That was the entire reason why the program of indefinite detention was established at Guantanamo: to do an end-run around the Constitution, just as tax dodgers and other criminals might keep their dirty money in foreign bank accounts outside of the reach of the IRS.

Amezuki is quite right here. There is no unavoidable torture, rape, nor inhumane treatment.

Obama has a peevish, thin-skinned side. His comment about Manning could have come out of George W. Bush's mouth word for word, right along with the glassy eye and the middle space stare.

Please don't get me wrong. When I criticize Obama, it feels a little weird, because he's been attacked in the most ridiculous, unfair way by the 'loyal' opposition from day-one. I wouldn't vote for anyone in the Republic Party for Dog Catcher against a dog.

But if the situationally 'loyal' opposition isn't going to do its main job (and they aren't), namely helping keep us honest, then we have to do that. Want to have a voice for the mild American left? There won't be one so long as the Democrats merely *suck less*.

Of course I'm appalled at Obama's civil rights record. And it's because there isn't any excuse for it. The rest we can argue about about, but there is a line.

Thank you good sir. Boumediene went a long way towards providing justice for those still held in Guantanamo by making it clear that human rights don't stop at our border, and if Congress had left well enough alone I think the President may well have been able to close it by now, and most of those who are truly guilty and dangerous would now be either facing trial or buried deep in a maximum security prison somewhere with no ability to do anyone harm ever again. I think that absent the hysterical and groundless fear-mongering that came overwhelmingly from Republicans, we might be well on our way towards doing right by those who were wrongly imprisoned.

I think it is entirely possible that some angry and dangerous individuals would have to be released due to the way the torture or other human rights violations they suffered undermined our ability to prosecute them. But the fact that we let them go does not mean we turn a blind eye to their doings. If they truly are as dangerous and committed to terrorism as we claim, then we will have ample opportunity to gather evidence of them attempting to do so in order to put them away forever--and do it right this time.

sapient: Amezuki, the portion of my comment that you quoted was directed at a prior comment by russell with whom (I hope) I've found some common ground more recently. Sorry that wasn't clear.

Well, you were quoting me, so I was a bit confused about that. Thank you for the clarification.

CCDG: And see Amezuki you crept in on little, never mind, and did a great front page post.

I get the impression that I'm supposed to take this as praise, but I have no idea what the first half of it means. :)

jonnybutter: Of course I'm appalled at Obama's civil rights record. And it's because there isn't any excuse for it. The rest we can argue about about, but there is a line.

This exactly. I think on the balance Obama has been an excellent president who has accomplished far more than he's given credit for. But the way he's taken any prosecution of the Bush Administration's crimes off the table, and even allowed some of those crimes continue, is just indefensible.

I understand that the political will to actively investigate those crimes does not exist in Washington, and that aggressively pushing for it would have derailed all the other good that has been accomplished in the first half of his term.

But he can at least get out of the frakking way and prohibit any further human rights violations.

i>"You keep using that word. I do not think it means what you think it means."

Nah, I understand what it means, and consider much of modern constitutional jurisprudence to be a perfect example of sophistry in action. Commerce clause jurisprudence especially. It's just sophistry in the service of a cause you like, so you give it a pass, and pretend to admire it's brilliance.

The purpose of the comment was simply to point out that you can't staff a government with people willing to swear to uphold a Constitution, and then treat it the way you want it treated, and expect them to treat other texts, such as our treaties, any better. It's like hiring an embezzler to cook the books for you, and getting mad when he cheats you. It's irrational.

Brett:Nah, I understand what it means, and consider much of modern constitutional jurisprudence to be a perfect example of sophistry in action. Commerce clause jurisprudence especially. It's just sophistry in the service of a cause you like, so you give it a pass, and pretend to admire it's brilliance.

You are still using "sophistry" incorrectly. It is probably best that we define our terms here so that we're on the same page.

The first entry on Dictionary.com (feel free to provide an alternative dictionary):

A sophism is taken as a specious argument used for deceiving someone. It might be crafted to seem logical while actually being wrong, or it might use difficult words and complicated sentences to intimidate the audience into agreeing, or it might appeal to the audience's prejudices and emotions rather than logic; e.g., raising doubts towards the one asserting, rather than his assertion. The goal of a sophism is often to make the audience believe the writer or speaker to be smarter than he or she actually is; e.g., accusing another of sophistry for using persuasion techniques.

A sophist is a user of sophisms, i.e., an insincere person trying to confuse or deceive people. Sophists will try to persuade the audience while paying little attention to whether their argument is logical and factual.

Sophistry is insincere; it is intended to mislead. An argument can be fallacious or incorrect without being insincere.

I do my best to avoid ascribing bad faith. I am less successful than I would like. But I have no qualms about describing the Bush Administration's fraudulent legal justifications for torture as sophistic arguments: they are based upon the splitting of paper-thin hairs over just how much you have to torment someone mentally or physically before it rises to the level of torture, and post-facto rationalizations about expediency and imminent threats which are explicitly rejected in the UN Convention Against Torture, which allows no exceptions whatsoever on that kind of basis. And they are arguments which do all of this, I remind you, in order to justify and avoid prosecution for nothing more noble than the deliberate infliction of extreme anguish on another human being in order to extract information from them that is inherently unreliable because of the way it was gained.

For anyone with a functioning conscience, this shouldn't even be an argument.

In response to this you raise the evil spectre of... the commerce clause. Possibly one of the single least straightforward areas of Con law of which I'm aware, about which there is a tremendous amount of good faith disagreement.

In arguing about universal wrongs, I made a point of avoiding exactly this kind of example because it is a bad example for which there are no clear right answers that can be cast in stark moral terms. I even avoided third-rail issues like abortion, because there is room for good faith disagreement about the unprovable point at which "personhood" begins.

And again, even if I accept your assertion as one hundred percent accurate for the sake of argument, it still doesn't in any way refute what I said about torture.

It is, at best, a "you do it too", or tu quoque argument. One which I stopped accepting from my child at about the age of four, if not earlier.

The purpose of the comment was simply to point out that you can't staff a government with people willing to swear to uphold a Constitution, and then treat it the way you want it treated, and expect them to treat other texts, such as our treaties, any better. It's like hiring an embezzler to cook the books for you, and getting mad when he cheats you. It's irrational.

This makes no sense at all unless you start from the assumption that everyone we elect to run our country is operating in bad faith--and think that a disagreement with your personal interpretation of the Commerce Clause translates into a willingness to ignore the plain meaning of a clearly-written human rights treaty in order to justify torturing someone. This comes across to me more as an artifact of your contempt and distrust for government and liberalism than as a clear-headed description of the way things actually are.

Think "Carl Sandburg".

I had to look it up, but knowing the quote now, it is slightly ironic.

xanax:"Amezuki" wouldn't happen to be a pseudonym for "Hilzoy" would it?

Just askin'...

(Spectacularly written / beautifully argued.)

We should be so fortunate. Alas: no. Not even close. I'm a longtime commenter here by another pseudonym, a feline-themed diminuitive. I'm not looking to hide who I am from the commentariat, just provide a degree of separation for casual Google searches of my name.

(But I'm going to be sitting over here kvelling for a little while...)

This was the great American experiment and the source of the idea that produced the term 'American exceptionalism' which many still believe.

Fun fact, if Wikipedia is to be believed: The term "American exceptionalism" itself was first used by members of the American Communist Party in the 1920s, in reference to their belief that "thanks to its natural resources, industrial capacity, and absence of rigid class distinctions, America might for a long while avoid the crisis that must eventually befall every capitalist society."[3]

'In essence, the Constitution does in fact apply to both US citizens and non-citizens alike. This should be an obvious conclusion if we accept the principles in the Declaration as self-evidently true: it is impossible to accept, for example, that all men are created equal, that these rights are inherent and universal, and then say that we should only recognize those rights as applying to American citizens.'

I accept the first sentence as true. But I'm not convinced the second sentence is true. The terms of the social contract can acknowledge the human rights that are possessed by all but this does not in itself yield a specification of how government must act in applying legal process to parties accused of violating the law. The U S Courts upheld laws and
actions as constitutional differently before the 13th and 14th amendments were adopted than after their adoption. So, for example, the Constitution could have been written in a way that would treat citizens and non-citizens differently in more cases that it actually does and still be consistent with the human rights principles of the Declaration.

The Bush administration and the Obama administration swore an oath to uphold the Constitution, and their allowance of treatment of prisoners outside the United States in ways that would not be allowed within the U S does not appear to violate that oath, at least that seems a reasonable interpretation.

GOB, way back:Almost all of the Founders were believers in a Creator which, at least to me, helps getting to self-evident.

Who were "the Founders"? Serious question. Are we talking about the signers of the Declaration, the authors of the Constitution, some of each, all of each, or what?

When Abraham Lincoln said in 1863 that "four score and seven years ago our fathers brought forth to this land a new nation", he was clearly referring to something that happened in 1776. But Lincoln in 1863 was leading a war to uphold the Constitution, not the Declaration. The nation-state he was (in his view) defending, and the "new nation" of which he spoke, were not exactly the same thing. So even Abraham Lincoln was a bit vague on who "the Founders" were.

My own favorite among those who might be counted as "the Founders" was Benjamin Franklin, for what that's worth. But I don't pretend to know what he might have to say on any of the vexing questions we argue about today.

Anyhow, GOB again: I construe the Declaration to be addressing universals (all mankind) and the Constitution to be addressing Americans, explicitly acknowledging and securing their rights and providing steps and procedures for governing at the highest level going forward.

By and large, I agree that the Declaration and the Constitution address different questions. That's fairly obvious to me from their opening paragraphs. Here, for instance, is how the Declaration begins:

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

It's not formally a preamble, but this opening sentence is an explicit statement of the document's purpose. At least one modern view of American "exceptionalism" is incompatible with the bolded part.

Translated into modern prose, this mellifluous 18th-century sentence says: "The purpose of this memo is to explain our grievances to the world." Most of the rest of the memo is an explicit list of those grievances. I count about 27 of them, including

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

"He" is the "present King of England". The "merciless Indian Savages" were evidently not part of the "mankind" to whom the memo was addressed. So even the Declaration is not about "universal" rights. But we knew that already.

'Who were "the Founders"? Serious question. Are we talking about the signers of the Declaration, the authors of the Constitution, some of each, all of each, or what?'

Both. The first somewhat idealistic, the latter more pragmatic. My opinion.

'So even the Declaration is not about "universal" rights. But we knew that already.'

The writers and signers of the Declaration of 1776. Well, they weren't perfect but way out in front of everyone else and, to my mind, inspired. If they were here today, with all that we know of the world and its people, I'm certain they would still be in the political avant-garde. As for those who put together the Constitution, to quote Russell Kirk, 'They could claim to be the authors of a new political order, Novus Ordo Seclorum', a more egalitarian, self-governing people with no heritable royalty. Again, a work in progress, not perfect, but the best the world has experienced. Again, my opinion.

'In essence, the Constitution does in fact apply to both US citizens and non-citizens alike. This should be an obvious conclusion if we accept the principles in the Declaration as self-evidently true: it is impossible to accept, for example, that all men are created equal, that these rights are inherent and universal, and then say that we should only recognize those rights as applying to American citizens.'

I accept the first sentence as true. But I'm not convinced the second sentence is true.

OK, so IANAL, but I've done a tiny bit of homework on this. A little knowledge being a dangerous thing, I will opine. Folks who AAL will, no doubt, correct me if I err.

The Constitution sometimes refers to citizens, and sometimes refers to people or persons.

When it says citizens, it means citizens.

When it says people or persons, it means people or persons, which includes but is not limited to citizens.

For general legal purposes, "person" is normally construed as a US person, which includes:

a citizen of the United States

an alien lawfully admitted for permanent residence

an unincorporated association with a substantial number of members who are citizens of the U.S. or are aliens lawfully admitted for permanent residence

a corporation that is incorporated in the U.S.

I personally find the last item annoying, but we don't all get our way.

If I'm not mistaken, some, perhaps most, Constitutional protections allocated to "persons" also normally apply to natural human persons who are physically in the United States, even if they are not legally here. Habeas, for example. At least until recently, anyway. But I could be wrong about that.

Net/net, Constitutional protections do not always extend to non-citizens who are not legally resident in the US, and definitely do not extend to non-citizens who are not physically in the US or under US jurisdiction.

Hence, Guantanamo, although in Boumediene the SCOTUS found that construing Guantanamo as being "outside the jurisdiction of the US" was not gonna fly. To their credit.

I have spent some time today thinking about the issues raised in this post and a question entered my mind the answer to which I have't the faintest. Since there are some legal types here, maybe someone knows.

When we in America fret about constitutional issues and the proper application and enforcement of the law (and, of course, we get diverse views depending on where we sit on the left-right seesaw) are we in any sense unique? Are there other developed countries that get down in the mud like we do over these issues? Maybe I see them in my readings on current events and just don't recognize.

An interesting (and vile) thing to consider is this: a large amount of the reasoning used to determine what could be done was not based upon what was lawful, or right, or within our principles - it was based on what could get people in trouble.

One of the most horrifying things I saw was a group of soi disant conservatives reveling in the idea that there couldn't possibly be anyone with legitimate standing to accuse the Bush administration of violating FISA. No one could bring a case, because no one could lawfully have the information needed to bring a case!

Now, I want to emphasize that what I found horrifying was that these people clearly thought that the Bush administration was breaking the law, but that there was simply no way to prove it. As if this made it okay! Clearly, their side, their clique, was winning, and that was all that mattered.

This same thing has resonated throughout the civil rights violations in the war on terror. It's not so much whether it's *right* to imprison people in Guantanemo; it's that there's no legal authority that has the power to compel us to act otherwise.

It was a clear violation of the UN charter to attack Iraq - but that would be a matter for the Security Council, and even if a resolution came before the council condemning us, it'd be vetoed - so who would bother to raise the complaint?

With this kind of attitude, it's impossible to expect us to live up to our ideals.

GOB: Are there other developed countries that get down in the mud like we do over these issues?

An interesting question. I think that in order for a citizenry to get "down in the mud" over issues relating to how their government functions and finely analyzing their foundational documents, they need to be in a country where it is possible for that debate to exist--and there needs to be a point to having it in the first place. If you're living in, say, Somalia, you don't really have much in the way of a functioning government, and what government you do have really isn't amenable to criticism or a detailed examination of their doings.

More to the point, I think, there needs to be some kind of legal structure in place that makes it possible for a given person's opinion to carry some kind of weight and have some kind of possibility of bringing change through that system in a way that makes examining and disagreeing over the finer points of their laws meaningful.

That's not to say that these conversations don't exist--really, we don't have any way of knowing without direct observation. This is purely my reasoned opinion.

LongHairedWeirdo: a large amount of the reasoning used to determine what could be done was not based upon what was lawful, or right, or within our principles - it was based on what could get people in trouble.

This is extremely bothersome to me as well. This kind of pragmatic, amoral approach to governing in America didn't begin with the Bush Administration, nor even really with modern-day conservatism--though Nixon and Reagan carry a significant share of the blame simply by demonstrating that it is not only effective but easy to get away with given that the will to punish it does not seem to exist in this country.

What they discovered, quite simply, is that for all the checks and balances that exist in our system of government, in the end the effectiveness of those checks and balances assume both that the people in the Executive branch are capable of being deterred by shame or the fear of consequences, and that at least one other branch of government is willing and able to act to rein them in.

It assumes a citizenry capable of making informed decisions in elections, an assumption that is no longer valid in the era of Fox News, when nearly half of the country is inundated with lies every day and believe a host of things that are demonstrably untrue.

It is a giant, gaping hole in our ability to stop bad actors who are willing to lie with impunity, know they aren't going to be held accountable in any meaningful way, and have a voting base that lives in their own alternate reality.

"a large amount of the reasoning used to determine what could be done was not based upon what was lawful, or right, or within our principles - it was based on what could get people in trouble."

I agree with this in the case of the torture regime, and FISA, less so on Iraq.

The clear US policy on Iraq was consistent with our policy forever that we are not bound by the UN Charter in the event that we need to take unilateral action to defend our security interests. All discussion of whether that was true or not aside, it was not a change of policy, or hiding behind whether someone could get in trouble or not. The only trouble anyone could get in, and did, was political.

The barbarous custom of having men beaten who are suspected of having important secrets to reveal must be abolished. It has always been recognized that this way of interrogating men, by putting them to torture, produces nothing worthwhile. The poor wretches say anything that comes into their mind and what they think the interrogator wishes to know.

-- On the subject of torture, in a letter to Louis Alexandre Berthier (11 November 1798), published in Correspondance Napoleon edited by Henri Plon (1861), Vol. V, No. 3606, p. 128